When news that the Telecoms Reform Package had been finally agreed (at least, sort of) on November 5th, there were many topical references to Guido – certainly I overheard cries of ‘Fawkes’ from one defender of Internet liberties. I am somewhat doubtful about the incendiary nature of the package – there is plenty of time for the fuses to get damp and fizzle out.
I have blogged at length about the fact that what Lord Mandelson says about speedy action to deal with file-sharers is not to be taken too seriously. There’s going to be a general election soon and the betting strongly suggests that he will not be in office after it (although I accept that is by no means certain). I feel bound to make the point again in response to some reactions to the Telecoms Reform Package – we are probably two years away from this being reflected in UK law and a long way away from knowing {i}how{/i} it will be implemented.
The main characteristic of the Package’s Art 1(3)a, the bit that has stolen the headlines, is that it is all things to all men. Art 1(3)a is, variously, the bulwark that will defend the rights of Internet users and the sword that will cut off the heads of errant file-sharers. The terms used, such as ‘fundamental rights and freedoms’, ‘procedural safeguards’, ‘presumption of innocence’ and ‘judicial review’ allow much room for manoeuvre and certainly do not necessarily mean what we use them to mean in discussions about UK law. Above all, I would point out that I see no {i}requirement{/i} to implement measures of this kind at all. No doubt something will come of it but it might be very much more limited than currently contemplated.
One other point seems to me to be often overlooked – certainly I made the connection myself only very recently. The UK already has considerable experience of court orders restricting Internet use. Under the Sexual Offences Act 2003, ss 104 to 113, sexual offences prevention orders (SOPOs) are frequently made in respect of offences centring on the possession of child pornography. Something may be learned from these cases.
The judiciary has, under the pressure of various judgments in the Court of Appeal, been very wary of completely restricting access to the Internet by way of a SOPO where the offender could show a need for continued access. For example, in R v Smith [2009] EWCA Crim 1795, the offender had downloaded and saved images to disc of a quite horrible nature involving very young children but the SOPO was restricted because it was considered wrong to interfere with him pursuing an interest he had in historical research (for which the Internet and his computer were vital). There are numerous other examples where work needs and perceived general needs for Internet access have been respected notwithstanding the commission of offences relating to child pornography. How could we possible justify wholesale disconnections for file-sharing if we don’t contemplate disconnection for involvement in child porn offences? Of course, I readily accept that consistency could be achieved by a more stringent application of SOPOs.
